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A Voice of Calm in Debate on Guns

December 25, 2012

Philip J. Cook

In “Living With Guns” Craig R. Whitney, a former correspondent and editor for The New York Times, writes that he is motivated by the belief that “Americans on both sides of the debate about guns can and must find common ground.” He hopes to defuse the prevailing “hysteria” by establishing that both sides are correct in at least one fundamental assertion.

To gun-rights advocates he would say that there is indeed a personal right to bear arms, and that it actually predates the Second Amendment.

To advocates of gun regulation he endorses the core belief that gun ownership comes with a set of responsibilities. In the colonial era the main responsibility was to serve in the local militia. Now that the militia has given way to the National Guard, there remains a responsibility to accept reasonable regulation of ownership, transfer and use of firearms.

If both the pro- and anti-gun factions today would accept this rights-and-responsibilities perspective, he maintains, then we could move beyond “stalemated” politics and take steps to reduce the rampage shootings, gang wars and other deadly incidents that impose such a great toll on our nation — a toll made all too vivid by the massacre of young children in Newtown, Conn. on Dec. 14.

The problem with Mr. Whitney’s analysis is that there is no stalemate. The gun-rights side has the strong upper hand and no apparent need for, or interest in, compromise. In recent decades the National Rifle Association’s state legislative agenda, successful in all but the bluest of blue states, has eased restrictions on carrying concealed weapons and has expanded the right to self-defense. Under President George W. Bush, Congress granted the gun industry immunity from most lawsuits, allowed a ban on assault weapons implemented in 1994 to expire and greatly restricted the use of data on gun transactions by law enforcement. The Democrats have ducked or joined the Republicans; the only notable gun-related action in President Obama’s first term was the bill he signed to allow guns in the national parks.

The biggest score for gun-rights advocates came in 2008 when the Supreme Court ruled 5 to 4 in District of Columbia v. Heller, which was about the district’s ban on personal handguns, that the Second Amendment, largely ignored in the 216 previous years of judicial review, did indeed create a personal right to keep and bear arms. The gun-rights crusade is now being vigorously pursued in the courts as well as the legislatures.

The grief and outrage engendered by the Newtown shootings may well provide a sustained boost to the advocates for stronger controls, or at least serve as a brake on the N.R.A. campaign to do away with existing controls.

President Obama has announced that he will lead this effort. At the same time several state legislatures are considering bills that would authorize teachers to carry guns in school. The N.R.A. position, announced on Friday by its executive vice president, Wayne LaPierre, is that the best antidote to school shootings is to put armed guards in all 100,000 schools in the country, and that view — that the most effective control for gun violence by “bad guys” is for “good guys” to be prepared to shoot back — is receiving respectful attention. I would wager that those pro-gun efforts have a better chance of passage than any pro-control measure in Congress.

Even for doubters of Mr. Whitney’s hopeful message the book has much to offer. Of particular interest is his brief and readable history of the role of guns (and their regulation) in the colonial era. This history provides the context for understanding what was on the minds of the founding fathers in drafting the Second Amendment, and for deciphering its rather abstruse wording.

The founders, according to Mr. Whitney, took it for granted that there was a personal right to keep firearms. That explains the amendment’s contention that “the right of the people to keep and bear arms, shall not be infringed.” That right was already established.

The founders’ concern arose in the context of widely held concern that the national government would usurp the power of the states. Since a standing national army was viewed as the vehicle for this new tyranny, the antidote was to be the state militias. Hence we have this preamble to the amendment: “A well regulated militia, being necessary to the security of a free State. ...”

In 1792 the new Congress adopted the Uniform Militia Act, requiring all free able-bodied white male citizens under 45 to muster with a local militia and equip themselves “with a good musket or firelock.” This personal mandate to obtain a gun was the first federal regulation on firearms. But in practice the militias were not “well regulated,” and a large percentage of those free males never even bothered to obtain a firearm (which was expensive at the time).

Eventually the National Guard, equipped by the federal government, was established as the alternative to state militias, and the national military apparatus is, needless to say, well entrenched. If the Second Amendment’s only role were to protect the states from the federal government, it would appear to be an anachronism.

In fact, as Mr. Whitney’s book shows, federal courts have paid the Second Amendment scant heed. A 1939 decision upheld the National Firearms Act of 1934 (which restricted machine guns and other gangster-style weapons) based on a reading of the Second Amendment that focused on the “militia” clause. That’s where the matter stood in the Supreme Court for the next seven decades. But a surge of legal scholarship beginning in the 1980s developed the historical case for giving the Second Amendment a personal rights reading, and that view was eventually embraced by the majority of the Supreme Court in the 2008 Heller decision.

While the dissenters and many scholars have taken issue with this ruling, in part because of a disagreement with its account of history, Mr. Whitney says that with Heller the majority reached the right conclusion despite its faulty historical account. He acknowledges the state-militia reading but then goes on to say that the personal right is implicit in the wording.

Regardless of the history and logic, one result of Heller (and a subsequent decision that extended the personal right as a check on state and local regulation) is to remove the threat of gun confiscation as an option. The “slippery slope” argument has often been used by pro-gun advocates as a basis for resisting even the mildest of regulations, but Heller provided a Constitutional limit.

By Mr. Whitney’s argument, the clear establishment of a personal right to gun ownership should open the door for advocates on both sides to discuss gun regulation; he offers a list of regulations that he would like to see enacted, including universal licensing of gun owners and registration of guns. Such measures might or might not be Constitutional; the court has barely begun spelling out the dividing line or even the standard by which it will evaluate gun regulations.

With the personal right now securely established, could the door be open to a new politics in which advocates on both sides agree to work toward a reasonable balance of freedom with civic responsibility? Would that it were possible.

Philip J. Cook, professor of public policy, is the author, with Jens Ludwig, of “Gun Violence: The Real Costs.”This article was originally published in The New York Times.